When negotiating contracts, parties sometimes fail to pay enough attention to the dispute resolution provisions, possibly because they are focusing on the more fundamental rights and obligations in the contract, but also because at that stage they probably do not wish to think about disputes occurring. It is important though that the contract between the owner and the contractor (and that between the contractor and any sub-contractor) contains a practical dispute resolution procedure, so that disputes can be resolved effectively and, hopefully, quickly.
The main ways of resolving construction disputes are:
• Negotiation（协商） .
• Mediation（调解） . This is where a neutral third party chosen by the parties, the mediator, assists the parties to negotiate an amicable settlement of the dispute. The mediator does not adjudicate the dispute and mediation is non-binding, so the mediator does not have the power to impose a settlement on the parties. Mediation is an informal process and relatively quick and cheap.
• Adjudication（裁定） . Often described as a 'quick and dirty' procedure, adjudication is where a neutral third party, the adjudicator, assesses the evidence presented by the parties to reach a decision which is binding upon the parties, although the decision is subject to review by an arbitrator or the courts.
• Litigation（诉讼） . This is when a dispute is resolved by a judge or a jury in a publicly provided court. The court's decision will be binding on the parties, although it may be subject to appeal to a higher court or courts. A contract may stipulate that disputes are to be resolved by litigation, but litigation is also the default option when a contract does not specify a dispute resolution procedure.
• Arbitration（仲裁） . In arbitration, a dispute is referred to a tribunal chosen by the parties, to be determined in a binding manner. The process is similar to litigation, but it is private, more flexible and less formal. An arbitral tribunal usually comprises one or three arbitrators.
Arbitration is the most common method of resolving international construction disputes. There are a number of reasons for this. Arbitration allows the parties to choose the arbitrator(s) who will resolve the dispute, and they can therefore appoint an arbitrator who has experience in the construction and engineering field (e.g. an engineer or surveyor), who will be competent to deal with technical issues.
It is also usually easier to enforce an arbitration award in a different country from where the award was made, than a court judgment. This is important when the assets of a party against whom an arbitration award or court judgment is made are in a different country from that where the arbitration award or court judgment was made, as is often the case in international construction disputes. The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (known as the “New York Convention”), which has been ratified by 149 countries(including over half of the countries in Africa, most countries in the Middle East, and very recently, in April 2013, Myanmar) requires party countries to ensure that foreign arbitral awards are recognized and generally capable of enforcement in their jurisdiction in the same way as domestic awards. While a court judgment made in one country may also be enforceable in another country, this will often depend on there being a bilateral treaty or arrangement between the two countries.
The other reasons why parties have historically favoured arbitration over litigation are confidentiality, cost and speed. For many parties, who do not want their disputes aired in public, confidentiality remains a significant factor for choosing arbitration. However, cost and speed are now less convincing reasons for opting for arbitration instead of the courts -some arbitrations can be just as expensive as litigation (particularly if a tribunal of three arbitrators is appointed) and can sometimes take as long to be heard as court cases.
Nowadays, many international construction contracts provide for a two, or even three, tier dispute resolution mechanism. For example, the parties might initially be required to refer a dispute to mediation, but if this does not lead to a settlement of the dispute within a specified period, the dispute will then be referred to arbitration. The aim of such clauses is to force the parties to try first to reach a settlement quickly and cheaply, without recourse to a much more time consuming and expensive arbitration.
The forms of contract used most widely in international construction projects are those published by FIDIC (Fédération Internationale Des Ingénieurs-Conseils or International Federation of Consulting Engineers). FIDIC produces a range of construction contracts for different types of projects, although the three main FIDIC forms of contract are the Conditions of Contract for Construction – The Red Book (for building and engineering works designed by the employer), the Conditions of Contract for Plant and Design-Build – The Yellow Book (for the provision of electrical and/or mechanical plant) and the Conditions of Contract for EPC/ Turnkey Projects – The Silver Book.
The Red, Yellow and Silver Books all provide for a three-tier dispute resolution mechanism, involving a Dispute Adjudication Board (DAB), amicable settlement and arbitration:
• A dispute is first referred by a party to a DAB comprising one or three members. The Red Book provides for a 'standing' DAB, i.e. one that is appointed by the parties at the beginning of the contract and which is used throughout its duration, whereas the Yellow and Silver Books provide for an 'ad hoc' DAB, i.e. one that is appointed by the parties only when a dispute arises. With an ad hoc DAB the parties can select members who are best qualified to address the particular issue(s) in a dispute. However, the advantages of a standing DAB are that its members will be familiar with the project and the contract from the outset, and as the DAB is already in place, a dispute can be referred to it straight away, thus saving the time which would be spent appointing the members of an ad hoc DAB.
The DAB is required to give its decision within 84 days after receiving the reference of the dispute, and the decision is binding on the parties for the time being, and then becomes final 28 days after the decision was received by the parties, provided neither party gives a notice of dissatisfaction within such period.
• If a party is dissatisfied with the DAB 's decision, it may within 28 days after receiving the decision, give notice of its dissatisfaction, setting out the matter in dispute and the reasons(s) for dissatisfaction. Where a notice of dissatisfaction is given, both parties shall then attempt to settle the dispute amicably before commencing arbitration. In order to give the parties the greatest flexibility, the FIDIC forms do not require that the parties adopt a particular procedure to try to reach an amicable settlement, leaving them to decide whether they should simply negotiate with each other or, for example, enlist the assistance of a third party by trying mediation.
• If a dispute cannot be settled amicably, and even if no attempt at amicable settlement has been attempted by the parties, the dispute shall be finally settled by arbitration, which may be commenced 56 days after the notice of dissatisfaction was given. Unless otherwise agreed by the parties, the arbitration shall be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) and be heard by three arbitrators.
The FIDIC three-tier procedure is quite complex, and potentially lengthy and expensive if the DAB's decision is not accepted by both parties. While this procedure is suitable for large infrastructure projects, it may be difficult to justify the expense of a three member DAB, and possibly a three member tribunal in an ICC arbitration, on smaller projects, where a simpler three-tier (e.g. negotiation-mediation-arbitration) or two-tier (e.g. mediation-arbitration) procedure, is likely to be quicker and cheaper.
When negotiating the arbitration clause in an international construction contract, whether it is a FIDIC form or not, there are various factors which parties should bear in mind, in particular:
• The 'seat' or venue of the arbitration（仲裁地） . The seat is where the arbitration is held, and where the parties are from different countries, they will often choose a neutral country as the seat. The seat is also significant, however, because the procedural arbitration law of the country where the seat is located will apply to the arbitration. Parties should therefore choose an arbitration seat which is not only conveniently located geographically, but is also in a country with a developed arbitration law and which is a party to the New York Convention.
• The number of arbitrators（仲裁员数量） . On a large dispute involving complicated issues of fact and law, having three arbitrators enables majority decisions, and three minds (rather than one) addressing the issues should also reduce the possibility of an error being made. It is wrong, however, to assume that because with a three member tribunal each party will be responsible for appointing an arbitrator (the third arbitrator generally being appointed by the two party-appointed arbitrators or a specified arbitral institution), the arbitrator who a party appoints will be sympathetic to that party's interests.
The disadvantages of having three arbitrators are increased costs and delays: the parties will have to pay for three arbitrators instead of one, and it will be harder to fix hearing dates when there are three arbitrators' diaries to consider. It is therefore questionable whether it is worth having a three member arbitral tribunal other than in large and complex disputes.
• The language of the arbitration（仲裁语言） . The arbitration clause should specify the language in which the arbitration is to be conducted. This is particularly important in international disputes where the parties may speak different languages, and it will also be a factor when appointing the arbitrator(s). Witnesses can still give evidence in the arbitration in their native language, with a translator on hand, and documents in a different language from the official language of the arbitration can be used, with translations provided.
• Institutional or ad hoc arbitration（机构仲裁或特别仲裁） . An institutional arbitration is one that is administered by an arbitration institution and conducted under that institution's arbitration rules; for example, the FIDIC contracts provide for arbitrations to be conducted in accordance with the Rules of Arbitration of the ICC. In an ad hoc arbitration the parties and the arbitrator(s) conduct the proceedings without help from an arbitration institution, although the parties may still elect to conduct the proceedings in accordance with a set of arbitration rules, such as the UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules.
In an ICC arbitration, the arbitrators' award is only issued to the parties after it has been reviewed and approved by the ICC Court, which may propose modifications to the form of the award and draw the arbitrators' attention to points of substance. The ICC therefore performs a 'quality control', as well as an administrative, function.
An ad hoc arbitration avoids the administrative costs of an institutional arbitration, but under some institutional rules (e.g. ICC), the administrative fee and arbitrators' fees are calculated on a sliding scale by reference to the amount in dispute, and so may not necessarily be more expensive than in an ad hoc arbitration.
Other leading arbitration institutions apart from the ICC are the London Court of International Arbitration (LCIA), the Stockholm Chamber of Commerce (SCC), the American Arbitration Association (AAA), the Hong Kong International Arbitration Centre (HKIAC), the Singapore International Arbitration Centre (SIAC), the China International and Economic Trade Arbitration Commission (CIETAC) and the Dubai International Arbitration Centre (DIAC).
Aside from adopting a workable dispute resolution procedure, there are various practices which the parties should consider implementing during a construction project, and in an arbitration, to help manage a dispute more effectively.
• Document management（文件管理） . Documentary evidence plays a significant role in construction disputes, but construction projects generate huge numbers of documents. Project owners and contractors should therefore have good document management systems, in which documents can be safely stored and easily located.
• Timely notification of claims（及时告知主张） . Construction contracts generally require a additional payment. In the FIDIC Red, Yellow and Silver Books, it is a condition precedent to bringing such claims that the contractor gives notice of a claim within 28 days after he became aware, or should have become aware, of the event or circumstance giving rise to the claim. It is essential that contractors therefore maintain accurate records of events which may give rise to claims and adhere strictly to notice requirements for submitting claims.
• Technical expertise（专业技术） . It will assist with the administration of the project, the preparation of any claims and the resolution of disputes if owners and contractors employ experts in technical fields such as programming and quantity surveying.
In both ad hoc and institutional arbitrations, the arbitrators generally have considerable latitude as to how the arbitration should be conducted. For example, the ICC Arbitration Rules provide in Article 22(2):
"the arbitral tribunal, after consulting the parties, may adopt such procedural matters as it considers appropriate, provided that they are not contrary to any agreement of the parties."
The ICC Arbitration Rules also identify (in Appendix IV) examples of case management techniques that can be used by the tribunal and the parties to control the length and cost of the arbitration, including:
• Splitting the proceedings or issuing one or more partial awards on key issues, when doing so may genuinely be expected to result in a more efficient resolution of the dispute.
• Identifying issues to be decided solely on the basis of documents rather than through oral evidence or oral argument at a hearing.
• In relation to documentary evidence, requiring the parties to produce with their submissions the documents on which they rely, and limiting requests for the opposing party to produce documents to documents or categories of documents that are relevant and material to the outcome of the case.
• Limiting the length and scope of written submissions and written and oral witness evidence, so as to avoid repetition and maintain a focus on key issues. One way of doing this is through a 'chess¬clock' approach, where the agreed length of time for the hearing is divided equally between the parties, so that each can use only its allotted time for making submissions and examining witnesses.
• Using telephone or video conferencing for procedural and other hearings where attendance in person is not essential, and use of online communication among the parties.
Parties should consider with their advisors which of these techniques are appropriate for a particular case.
Some international construction disputes will, of course, be harder to resolve than others and will 'go the distance' to the conclusion of a contested arbitration. However, even if the parties have adopted a sensible dispute resolution procedure and some of the other measures referred to above, that should not deter them from trying to negotiate a settlement at any stage of a dispute.